## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 28 1997 

### PATRICK FISHER Clerk 

### PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

PETER MAIER, P.E.; INTERMOUNTAIN WATER ALLIANCE; ATLANTIC STATES LEGAL FOUNDATION; and KAY HENRY, Petitioners,

v.UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; CAROL BROWNER, Administrator, United States Environmental Protection Agency, Respondents. No. 95-9525

APPEAL FROM THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

(D.J. No. 90-5-1-7-1299)

Matthew Gilbert Kenna, Durango, Colorado, for Petit ioners. Jon M. Lipshultz, Environmental Defense Section, En vironment and Natural Resources Division, U.S. Department of Justice (Loi s J. Schiffer, Assistant Attorney General, and Stephen J. Sweeney, Water Div ision, U.S. Environmental Protection Agency, with him on the brief), Washingt on, D.C., for Respondents.* The Honorable Arthur L. Alarcon, Senior United States Circuit Judge for

the Ninth Circuit, sitting by designation. -2- Before SEYMOUR , Chief Judge, ALARCON * , and LUCERO , Circuit Judges.

SEYMOUR , Chief Judge.1 The Utah Wilderness Association was dismissed fromthis appeal. For

simplicity’s sake, we shall refer only to Mr. Maieras petitioner. -3- Appellants Peter Maier, the Intermountain Water All iance, the Atlantic States Legal Foundation, the Utah Wilderness Associ ation, and Kay Henry 1 petitioned the Environmental Protection Agency (EPA ) to initiate rulemaking under the Clean Water Act (CWA), 33 U.S.C. §§ 1251- 1387

. Mr. Maier contended that recent developments in municipal was tewater technology have rendered the EPA’s regulations for secondary treatm ent inadequate, and therefore the EPA must promulgate new standards. The EPA den ied the petition, and Mr. Maier appealed to this court. We affirm.

I.
A. We start with an overview of the relevant statutory scheme. The CWA aims “to restore and maintain the chemical, physica l, and biological integrity of the Nation’s waters” by reducing and eventually eli minating the discharge of pollutants. 33 U.S.C. § 1251(a), (a)(1). “[T]he b asic structure of the [CWA] . . . translates Congress’ broad goal of eliminating ‘the discharge of pollutants into the navigable waters’ into specific requirements th at must be met by individual point sources.” EPA v. National Crushed Stone Ass’ n , 449 U.S. 64, 69 (1980)-4-

(quoting 33 U.S.C. § 1251(a)(1)) (citations omitted ). A “point source” is defined as “any discernible, confined and discrete conveyan ce . . . from which pollutants are or may be discharged.” 33 U.S.C. § 1362(14). The CWA prohibits the discharge of any pollutant from a point source unle ss that discharge complies with the CWA’s requirements. 33 U.S.C. § 1311(a). Comp liance can be achieved by obtaining a National Pollutant Discharge Eliminatio n System (NPDES) permit, pursuant to 33 U.S.C. § 1342, which establishes tec hnology-based controls and ensures compliance with state or federal water qual ity standards. 33 U.S.C. § 1311(b)(1)(C). These permits generally contain qua ntitative limits on the amounts of specified pollutants that may be dischar ged. See generallyOklahoma
v. EPA , 908 F.2d 595, 597-98 (10th Cir. 1990), rev’d on o ther grounds sub nom. , Arkansas v. Oklahoma , 503 U.S. 91 (1992). The CWA mandates varying standards of technology-ba sed treatment as the minimum requirement for different categories of poi nt sources. 33 U.S.C. §§ 1311, 1314. Under section 1311, “effluent limitati ons for point sources, other than publicly owned treatment works [POTWs] . . . r equire the application of the best practicable control technology currently avail able as defined by the Administrator.” Id. § 1311(b)(1)(A). By contrast, the same section re quires “for publicly owned treatment works . . . effluent limit ations based upon secondary2 Secondary treatment generally refers to a process of physical and

biological treatment of wastewater to remove pollut ants which deplete the water’s oxygen content and increase its acidity. See generallyCity of Sarasota v. EPA , 813 F.2d 1106, 1108 n.7 (11th Cir. 1987); Natural R esources Defense Council, Inc. v. EPA , 790 F.2d 289, 293 n.2 (3d Cir. 1986). -5- treatment.” 2 Id

. § 1311(b)(1)(B). The EPA may supplement the minimu m requirements by using individual permits to impose “any more stringent limitation . . . necessary to meet water quality standards.” Id. § 1311(b)(1)(C). When Congress first enacted these provisions, it intende d to phase in a requirement that publicly owned treatment works utilize “best practi cable waste treatment technology,” a stricter standard than secondary tre atment. 33 U.S.C. § 1311(b)(2)(B) (1973); see also S. REP
. N O . 92-414, at 43 (1972), reprinted in1972 U.S.C.C.A.N. 3668, 3709 (“Publicly-owned treatment systems must meet the secondary treatment requirement of Phase I and, in Phase II, the mandate requires the best practicable treatment . . . .”). In 1981, however, Congress repealed this general requirement and limited the stricter standa rd to federally-funded POTWs. Municipal Wastewater Treatment Construction Grant A mendments of 1981, Pub. L. No. 97-117, § 21(b), 95 Stat. 1623, 1632 (1981).
B. Secondary treatment, which is the basic requirementfor all POTWs, is principally concerned with removing biological poll utants which affect the oxygen content of wastewater. Healthy waters conta in dissolved oxygen upon3 Carbonaceous biochemical oxygen demand (CBOD) quantifies “the

amount of oxygen consumed by various microorganisms in metabolizing organic (carbon) matter in the wastewater,” while nitrogeno us biochemical oxygen demand (NOD) measures “the oxygen consumed by othertypes of bacteria . . . in converting ammonia to nitrite and then to nitrate, a process known as nitrification.” Secondary Treatment Information, 4 8 Fed. Reg. 52,272, 52,274 (1983) (proposed Nov. 16, 1983). NOD can also be r eferred to as NBOD, as Mr. Maier does. “Nutrients” are related to NOD, and refer to materi als upon which certain bacteria feed. Oxygen is consumed when these bacte ria respire, or when they die and other organisms use oxygen to consume them.

4 Controlling CBOD has been the main goal of seconda ry municipal wastewater treatment both because CBOD is usually amuch greater problem than NOD and because the development of technology to ef fectively address high levels of NOD has lagged behind that used to reduce CBOD. Secondary Treatment Information, 48 Fed. Reg. 52,272, 52,275 (1983) (proposed Nov. 16, 1983). More than a decade ago, scientific commentators spe culated as to whether NOD was meant to be controlled as a component of BO D. See rec. at 43 (“Although significant nitrification can occur in t he BOD 5 test for secondary effluents, much debate centers on whether the 30-mg /L BOD 5 standard, as defined by EPA, was intendedto include only carbonaceous oxidation, or also any nitrogenous oxidation that might be exerted in the BOD 5 test.”). -6- which flora and fauna rely, but biological pollutan ts “demand” and consume this oxygen. The rate at which dissolved oxygen is cons umed is measured by a parameter called “biochemical oxygen demand” (BOD). BOD actually measures the effect of two components of oxygen depletion wh ich, with proper testing, can be disaggregated: CBOD and NOD. 3 The EPA’s regulations for standard secondary treatment have always focused on BOD, and in particular on control of
CBOD. 45 Standard secondary treatment did not include contr ols on NOD.

6 CBOD levels tend to rise sharply and then plateau, while NOD levels increase at a slower rate. As a result, early test ing for BOD (e.g., after five days) will accurately assess CBOD but will fail to measur e the levels to which NOD (continued...) -7- Initially, the EPA required testing for BOD by a st andard five-day test of overall BOD levels, the so-called BOD 5 test. See rec. at 121-22. But the EPA became concerned that the BOD 5 test produced erroneous indications of effluent quality. Secondary treatment with existing technol ogy 5 under some operating conditions could lead to increased nitrification (N OD), and inflated BOD 5 values, despite producing effluent of better quality than f acilities with lower BOD 5 . Id. ; Secondary Treatment Information, 48 Fed. Reg. 52,27 2, 52,275-6. In a 1984 rulemaking, the EPA addressed the problem by revisi ng its regulations to allow the permitting authority to require facilities to e mploy a more specific measure of CBOD rather than the general test for BOD. See Secondary Treatment Regulation, 49 Fed. Reg. 36,986, 36,988-90, 36,998- 99 (1984) (to be codified at 40 C.F.R. pt. 133). In effect, EPA recognized thatNOD can constitute a significant component of BOD levels, but concluded that measuring NOD in some cases might distort rather than enhance accurate as sessment of effluent quality. During this rulemaking, commenting parties, includi ng Mr. Maier, suggested that secondary treatment standards ought to directly address NOD or ultimate BOD. 6 See id

. at 36,999; rec. at 297. The EPA concluded, howeve r, that6 (...continued)

will eventually rise. This rise in NOD would be captured by the measurement of ultimate BOD. This disparity has apparently been r ecognized for several decades, see rec. at 21, 51, but Mr. Maier suggests it was igno red when EPA promulgated regulations under the CWA, see id. at 8; see also id. at 244. -8- NOD levels were quite variable and were therefore i nappropriate as a criterion for generally-applicable standards. The EPA maintained that NOD would be better dealt with on a case-by-case basis in NPDES permitt ing. Secondary Treatment Regulation, 49 Fed. Reg. at 36,999; rec. at 297-98. The EPA therefore characterized NOD controls as a form of “advance tr eatment” to be imposed by permit where necessary. The EPA also noted that to tal impact on dissolved oxygen level (ultimate BOD) is to be considered in the NPDES permitting process. Secondary Treatment Regulation, 49 Fed. R eg. at 36,999. The EPA’s 1984 rulemaking was not appealed to the federal cou rts. Thus, current regulations for secondary treatment do not establish standards for NOD, although an individual facility’s NPDES permit may well impose requirements for NOD. In 1993, Mr. Maier filed a petition requesting the EPA to initiate rulemaking to set parameters for NOD and ultimate B OD as part of its secondary treatment regulations. Mr. Maier argued that the e xisting regulations, setting parameters only for CBOD and BOD 5 , were inadequate because new secondary treatment technology made it feasible and cost-effe ctive to control both CBOD and NOD. The EPA did not controvert that controlli ng NOD was now feasible-9-

and cost-effective for some (but not all) POTWs, bu t emphasized that the impact of NOD is highly variable and dependent upon such f actors as temperature and rate of flow of the receiving water body. In the E PA’s view, this variability continues to justify its regulatory decision to con trol CBOD with a generallyapplicable regulation, but to control NOD on a case -by-case basis through the permitting process. Consequently, the EPA denied M r. Maier’s petition. Mr. Maier filed the instant petition for review in this Court pursuant to 33 U.S.C. § 1369(b)(1).

II. We first determine whether we have jurisdiction. A lthough both parties agree that we have jurisdiction, “no action of the parties can confer subject-matter jurisdiction upon a federal court.” Insurance Corp . of Ireland, Ltd. v. Compagnie des Bauxites de Guinee , 456 U.S. 694, 702 (1982). We have an independentduty to examine our own jurisdiction. Lopez v. Behles , 14 F.3d 1497, 1499 (10th Cir.), cert. denied , 115 S. Ct. 77 (1994). The CWA establishes a bifurcated system of judicial review. Section 1365 “confers jurisdiction on the federal district court s, not courts of appeal, to review any action ‘where there is alleged a failure of the Administrator to perform any act or duty under this Act which is not discretiona ry with the Administrator.’”7Section 1369 codifies Section 509 of the Federal W ater Pollution Control

Act (Clean Water Act) of 1972. -10- Trustees for Alaska v. EPA , 749 F.2d 549, 558 (9th Cir. 1984) (quoting 33 U.S .C. § 1365(a)(2)). Section 1369 of the CWA provides th at “[r]eview of the Administrator’s action . . . (E) in approving or pr omulgating any effluent limitation or other limitation under section 1311, 1312, or 1316 of this title . . . may be had by any interested person in the Circuit Court of Appeals of the United States.” 33 U.S.C. § 1369(b)(1). 7The jurisdictional grant in section 1369 is exclusive. American Petroleum Inst. v. Train , 526 F.2d 1343, 1344 (10th Cir. 1975). We must determine whether the EPA’s denial of Maier’s petition to institute rulemaking constitutes an “action . . . i n approving or promulgating any effluent limitation or other limitation,” and thus falls within the ambit of section 1369(b)(1). The District of Columbia Circuit dealt with a simil ar problem in Oljato Chapter of Navajo Tribe v. Train , 515 F.2d 654 (D.C. Cir. 1975), which interpreted jurisdictional provisions of the Clean Air Act (CAA) in the context of the EPA’s refusal to revise previously promulgated standards for certain power plants. As in the CWA, the CAA contained one secti on permitting citizen suits to be brought in federal district court, id. at 657-58 n.4 (citing CAA § 304, 42 U.S.C.A. § 1857h-2(a) & (b) (1970)), and another gr anting jurisdiction to the-11-

courts of appeal to “review of action of the Admini strator in promulgating” standards of performance, id. at 657 n.3 (quoting CAA § 307(b), 42 U.S.C.A. § 1857h-5(b) (1975 pocket part)). The petitioners in Oljato Chapterargued that an EPA standard had been rendered obsolete by changes in technology, and that the Administrator’s failure to revise the rule “constit uted a failure to perform a nondiscretionary duty, thereby conferring District Court jurisdiction.” Id. at 658. The court rejected petitioners’ attempts to disting uish “between judicial review of an original rule and review of a subsequent refusal to modify or reverse that rule,” noting that [w]hile we have no difficulty in making the suggest ed

distinction, we conclude that Congress intended all review related to the continuing validity of standa rds of performance to be included within the exclusive sco pe of [the section providing for appellate review]; th at this action is premised upon the Administrator’s refusal to revise the standard is of no jurisdictional import. Id

. at 659-60. Oljato Chapterrelied both on the CAA’s legislative history, and on the fact that [s]ince a revision by the Administrator is the ulti mate

goal of a new information appeal, it makes little s ense to suggest that this court is stripped of its . . . ju risdiction whenever a party attempts to avoid litigation by fi rst asking the Administrator voluntarily to make the sa me revision a successful . . . petition would require. Id. at 660.8 We note that two courts have eschewed jurisdiction under section 1369;

however, neither case involved the continuing valid ity of a rule in the face of new information. In Bethlehem Steel Corp. v. EPA , 782 F.2d 645, 656 (7th Cir. (continued...) -12- As was the case in Oljato Chapter, the legislative history of the CWA speaks directly to the case at hand:

The Committee recognizes that it would not be in th e public interest to measure for all time the adequac y of a promulgation of any standard requirement or regulat ion by the information available at the time of such promulgat ion. In the area of protection of public health and environment al quality, it is clear that new information will be developed and that such information may dictate a revision or modification of any promulgated standard, requirement, or regulation es tablished under the act. The judicial review section, theref ore, provides that any person may challenge any requirement afterthe date of promulgation whenever it is alleged that significan t new information has become available.
S. REP
. N O . 92-414, at 85 (1972), reprinted in1972 U.S.C.C.A.N. 3668, 3751. Congress plainly intended that the Administrator’s refusal to institute rulemaking in the face of new information could be reviewed di rectly in a circuit court. Section 1369's language about an Administrator’s “a ction . . . in approving or promulgating any . . . limitation” arguably does not apply to the Administrator’s refusal to promulgate a rule in the first instance. We agree with the court in Oljato Chapter , however, that a challenge to the refusal to revis e a rule in the face of new information is more akin to a challenge to the existing rule than a challenge to the refusal to promulgate a new rule. 8 Because Mr. Maier is8 (...continued)

1986), the remedy sought was “not to rescind or mod ify” as a result of new information, but rather “to conduct a new, follow-o n rulemaking proceeding . . . distinct from that which [was] under review.” Like wise, in Natural Resources Defense Council, Inc. v. Train , 519 F.2d 287, 291 (D.C. Cir. 1975), review was sought for “the omission of certain substances” and“[u]nless a substance is listed no standard or prohibition reviewable under section[1369] will ever be promulgated.” We also note that review was not pos sible because neither case had a complete administrative record. Bethlehem St eel , 782 F.2d at 655-56 (review “will require the compilation of a new admi nistrative record”); Natural Resources Defense Council, Inc. v. Train , 519 F.2d at 291 (“[T]he Administrator had not filed the entire administrative record with the court.”). -13- essentially challenging the sufficiency of the EPA’ s secondary treatment regulation, we have no difficulty construing this a s a challenge to an “action in approving or promulgating” under section 1369. Whe re petitioners’ challenge is to the substance of a regulation that the agency ha s already promulgated, exclusive jurisdiction in the court of appeals may not be evaded merely by styling the claim as one for failure to revise. Cf. D AVID P. C URRIE , A IR P OLLUTION : F EDERAL L AW AND ANALYSIS § 9.10, at 9-31 (1981) (“In short, allegations that the Administrator has failed to take action require d by statute should not be permitted to circumvent the plain statutory command that judicial review of decisions respecting implementation plans and otherregulations is to be in the courts of appeals . . . .”). “Absent a far clearerexpression of congressional intent, we are unwilling to read the CWA as creatin g such a seemingly irrational bifurcated system.” Crown Simpson Pulp Co. v. Cost le , 445 U.S. 193, 196-979 Although the statutory scheme in Environmental Def ense Fund v. NRC did not contain a bifurcated system of judicial rev iew, that fact is irrelevant. The CWA confers jurisdiction on the district courts onl y for the failure to perform non-discretionary duties. Where the alleged duty i s discretionary, as here, the courts of appeals have jurisdiction.

10 Prudential concerns are not to the contrary, for “ [u]nlike other actions in which the district court serves the important funct ions of developing a complete record and ‘defining and focusing the issues,’ in m any appeals of administrative actions, the agency already has fulfilled those fun ctions and there is no practical reason to submit the issues to two-tiered judicial review.” 2 S TEVEN A LAN C HILDRESS & M ARTHA S. D AVIS , F EDERAL S TANDARDS OF REVIEW§ 14.03, at 14- 19 (2d ed. 1992) (citation omitted). -14- (1980) (rejecting attempt to distinguish challenge to EPA veto of a state permit from a challenge to EPA issuance of a permit). Moreover, if the EPA had responded to Mr. Maier’s p etition by promulgating a revised rule, exclusive jurisdiction for review would lie in the Court of Appeals. The fact that the EPA declined t o act does not deprive us of jurisdiction, for we have exclusive jurisdiction ov er “petitions to compel final agency action which would only be reviewable in the United States Courts of Appeal.” See Environmental Defense Fund v. NRC , 902 F.2d 785, 786 (10th Cir. 1990). 9 This rule ensures that an appellate court will re view the Administrator’s decision whether the ultimate challenge is to a fai lure to revise or to a decision to revise. 10 Because exclusive jurisdiction to review the subs tance of regulations finally promulgated by the EPA lies with the Courts of Appeals, we have jurisdiction to compel revisory rulemaking unless t he agency’s failure falls within-15-

that class of nondiscretionary duties for which jur isdiction has been granted to the district court. This is not a case which could have been brought in district court as a citizen’s suit under section 1365. Such a suit may lie only for failure to perform a nondiscretionary duty. 33 U.S.C. § 1365. The inst ant case is unlike others in which circuit courts have declined to find section 1369 jurisdiction in the face of the EPA’s refusal to promulgate regulations at all, or its failure to do so by a date certain set by law. For example, in Trustees for A laskathe Ninth Circuit considered a claim that the EPA had totally failed to promulgate specific regulations for the placer mining industry notwiths tanding a requirement from Congress to do so, and was instead setting effluentlimitations in individual NPDES permits. Trustees for Alaska , 749 F.2d at 558. The court determined that this claim was “framed in terms of the EPA’s failur e to comply with a nondiscretionary duty to promulgate industry-wide rules,” id. , and was therefore required to be brought in district court under sect ion 1365, id. at 558-59. See also Armco, Inc. v. EPA , 869 F.2d 975, 981-82 (6th Cir. 1989) (disclaiming jurisdiction where EPA had refused to perform nondi scretionary responsibility to propose comprehensive sludge management regulations ); Pennsylvania Dep’t of Envtl. Resources v. EPA , 618 F.2d 991, 995 (3d Cir. 1980) (declining secti on 1369 jurisdiction over suits to compel EPA to perfo rm nondiscretionary duty to11 We note the dicta in Oljato Chapterthat a duty under the CAA to revise

regulations “from time to time” is discretionary wa s rendered obsolete by statutory revision imposing a mandatory duty to rev iew regulations every five years. See Environmental Defense Fund v. Thomas , 870 F.2d 892, 896-97 (2d Cir. 1989).

12 As the court in Oljato Chapternoted, the limited jurisdiction granted to the district court would be rendered boundless if a n abuse of discretionwere considered to be a “failure to perform a nondiscret ionaryact.” 515 F.2d at 662 (emphasis added). -16- promulgate new source performance standards applicable to post-mining discharges). In these cases, the EPA had failed to issue the disputed regulations at all. In the instant case, the EPA has both issu ed and revised its regulations, but Mr. Maier contends it has abused its discretion by declining to initiate rulemaking again in light of new information. Both parties ag ree that the timing of any revision is discretionary. 11 Mr. Maier does not contend the EPA has failed to comply with a nondiscretionary duty, and thus a dis trict court could not exercise jurisdiction over his claim under section 1365. 12 We therefore hold that we have jurisdiction over the instant case under section 13 69.

III.
A.13 In Heckler v. Chaney , 470 U.S. 821, 831 (1985), the Supreme Court

decided that agency refusals to take specific enfor cementactions are presumptively unreviewable under the APA. However, the Court expressly did not address the level of deference due when the age ncy refuses to initiate rulemaking . Id

. at 825 n.2. The D.C. Circuit has held that the Ch aney presumption does not apply to refusals to initiate rulemaking. AHPA , 812 F.2d at 4-5. See also Cass R. Sunstein, Reviewing Agency Inaction After Heckler v. Chaney, 52 U. C HI
. L. REV
. 653, 680-83 (1985). The EPA agrees that its refusal to initiate rulemaking is reviewable. -17- We review an agency’s refusal to initiate revisory rulemaking to determine if the agency’s refusal was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see Oklahoma v.
EPA , 908 F.2d 595, 598 (10th Cir. 1990), rev’d on othe r grounds sub nom. Arkansas v. Oklahoma , 503 U.S. 91 (1992). Although our inquiry into th e basis of the agency’s action will be searching and carefu l, our review is ultimately a
narrow one. See Citizens to Preserve Overton Park, Inc. v. Volpe , 401 U.S. 402, 416 (1971). Review under the “arbitrary and capric ious” standard “encompasses a range of levels of deference to the agency.” Ame rican Horse Protection Ass’n v. Lyng , 812 F.2d 1, 4 (D.C. Cir. 1987) (AHPA ) (citing WWHT, Inc. v. FCC , 656 F.2d 807, 817 (D.C. Cir. 1981)); accordBrown v. Secretary of Health and Human
Servs. , 46 F.3d 102, 110 (1st Cir. 1995). In determining the appropriate level of deference, we heed the nature and context of the ch allenged agency action or inaction. 13-18-

Substantial prudential concerns counsel particularl y broad deference in the context of review of an agency refusal to initiate rulemaking. The D.C. Circuit has repeatedly observed that, within the range of d eference embodied in the “arbitrary and capricious” standard, refusals to in itiate rulemaking are at the high end. See, e.g. , Capital Network Sys., Inc. v. FCC , 3 F.3d 1526, 1530 (D.C. Cir. 1993) (quoting AHPA , 812 F.2d at 4-5; citing Cellnet Communications, I nc. v. FCC , 965 F.2d 1106, 1111 (D.C. Cir. 1992)). Courts ar e ill-equipped and poorly situated to address important reasons for agency in action, such as the decision that a “problem is not sufficiently important to ju stify the allocation of significant scarce resources given the nature of the many otherproblems the agency is attempting to address.” 1 K ENNETH C. D AVIS & RICHARD J. P IERCE , A DMINIS TRATIVE L AW T REATISE § 6.9, at 280 (3d ed. 1994). “A court rarely has enough information to second guess agency decisions premis ed on this type of reasoning.” Id. ; see also Natural Resources Defense Council, Inc. v. SEC , 606 F.2d 1031, 1046 (D.C. Cir. 1979) (“An agency’s discretionary d ecision notto regulate a given activity is inevitably based, in large measur e, on factors not inherently susceptible to judicial resolution . . . .”); AHPA , 812 F.2d at 4-5 (according heightened deference to refusal to initiate rulemak ing). Nonetheless, we will not blindly uphold agency refu sals to initiate rulemaking in the face of new information. “[C]han ges in factual and legal-19-

circumstances may impose upon the agency an obligat ion to reconsider a settled policy or explain its failure to do so.” Bechtel v . FCC , 957 F.2d 873, 881 (D.C. Cir. 1992). For example, “a refusal to initiate a rulemaking naturally sets off a special alert when a petition has sought a radical modification of a rule on the basis of a radical change in its factual premises.” AHPA , 812 F.2d at 5. Thus, the D.C. Circuit has held “that an agency may be fo rced by a reviewing court to institute rulemaking proceedings if a significant f actual predicate of a prior decision on the subject (either to promulgate or no t to promulgate specific rules) has been removed.” WWHT , 656 F.2d at 819 (describing Geller v. FCC , 610 F.2d 973 (D.C. Cir. 1979)). An agency determination may also be vulnerable to c hallenge if it rests on an insufficient legal predicate. Where the agency’ s refusal to initiate rulemaking implicates questions of statutory interpretation, w e use the familiar Chevrontest. When we review an agency’s interpretation of a stat ute it administers, we ask two questions. “First, always, is the question whetherCongress has directly spoken to the precise question at issue. If the intent of Co ngress is clear, that is the end of the matter; for the court, as well as the agency, m ust give effect to the unambiguously expressed intent of Congress.” Chevr on, U.S.A., Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837, 842-43 (1984). But “if the statute is silent or ambiguous with respect to the specific issue, the question for14 In his initial appellate brief, Mr. Maier also arg ued that the EPA must

amend its regulations to replace testing for oxygen depletion after five days (continued...) -20- the court is whether the agency’s answer is based o n a permissible construction of the statute.” Id. at 843. If Congress has explicitly or implicitly delegated authority to an agency, “legislative regulations ar e given controlling weight unless they are arbitrary, capricious, or manifestl y contrary to the statute.” Id. at 844. “This deference is a product both of an aware ness of the practical expertise which an agency normally develops, and of a willing ness to accord some measure of flexibility to such an agency as it encounters n ew and unforeseen problems over time.” International Bhd. of Teamsters v. Dan iel , 439 U.S. 551, 566 n.20 (1979).

B. Mr. Maier asserts here that the existence of new te chnology mandates revision of the regulations governing publicly owne d treatment works. The EPA does not controvert that NOD can now be controlled effectively. The central question on appeal is whether such control must be accomplished through the EPA’s generally-applicable standards for secondary treatment, or whether the EPA may continue to address the problem on a case-b y-case basis through the permit process. 1414 (...continued)

(BOD 5 ) with testing for ultimate oxygen depletion. In h is reply brief, Mr. Maier concedes that this argument cannot stand alone and is founded on his argument about the need to set general parameters for NOD. -21- Mr. Maier argues that the EPA’s refusal to initiate rulemaking is arbitrary and capricious because the development of the new t echnology has removed both the legal and factual predicate of the EPA’s decisi on not to set parameters for NOD. Mr. Maier asserts that because the CWA is a “ technology-forcing” statute, the development of cost-effective new technology mu st be incorporated into the EPA’s generally-applicable secondary treatment regu lations. Alternatively, he argues that even if the statute gives the EPA discr etion to address NOD levels by permit, its decision to do so in this instance is n ot supported by the evidence before the agency or is based on the consideration of impermissible factors. Although there is substantial overlap between these arguments, we consider them in turn. Under Chevron ’s first step, we ask “whether Congress has directl y spoken to the precise question at issue.” 467 U.S. at 842 . Section 1311 of the CWA specifies: (a) Except as in compliance with this [and other] s ections . . . the discharge of any pollutant by any person shall be u nlawful. (b) In order to carry out the objective of this chapter there shall be achieved--

. . . .-22-

(1)(B) for publicly owned treatment works . . ., ef fluent limitations based upon secondary treatment as defined by the Ad ministrator pursuant to section 1314(d)(1) of this title . . .

. 33 U.S.C. § 1311 (emphasis added). In turn, sectio n 1314(d) provides that “[t]he Administrator . . . shall publish within sixty days after October 18, 1972 (and from time to time thereafter) information, in terms of amounts of constituents and chemical, physical, and biological characteristics of pollutants, on the degree of effluent reduction attainable through the applicati on of secondary treatment.” Id. § 1314(d)(1). Aside from sections 1311 and 1314, the CWA does not further delimit “secondary treatment,” or specifically cons train the Administrator in promulgating generally-applicable effluent limitati ons for POTWs. Congress has not directly spoken to the precise que stion of whether the EPA has discretion to conclude that reductions in N OD are not required to be achieved by generally-applicable effluent limitatio ns, but may instead be imposed by permit. The statute plainly delegates to the EP A authority to define secondary treatment, and to promulgate generally-applicable r egulations based on its definition. We must therefore determine whether th e EPA’s secondary treatment regulations are a “permissible construction” of the CWA. Mr. Maier posits that the statutory definition of “secondary treatment” m ust include technology to reduce NOD and nutrients if such technology is avai lable and cost-effective. He argues that the EPA’s decision to control NOD by pe rmit is not a legitimate-23-

policy choice because the CWA requires the EPA to p romulgate generallyapplicable effluent limitations for every pollutantthat can be controlled with “secondary treatment.” We disagree and conclude th at the EPA’s secondary treatment regulations are a permissible exercise of its authority under sections 1311 and 1314. As an initial matter, we must reject Mr. Maier’s cl aim that § 1314(d)(1) requires the Administrator to publish secondary tre atment regulations for any pollutant that can be controlled via secondary treatment. That provision plainly mandates only that the EPA issue scientific information “from time to time.” Compare 33 U.S.C. § 1314(d)(1) (“The Administrator . . . s hall publish . . . from time to time . . . information . . . on the degree of effluent reduction attainable through the application of secondary treatment.”), withid. § 1314(b) (“the Administrator shall . . . publish . . . regulations .”). While it is true that where reductions in NOD are “attainable through the appli cation of secondary treatment,” id. § 1314(d)(1), the EPA may have a present duty unde r § 1314(d)(1) to publish information pertaining to those reductio ns, cf. Oljato , 515 F.2d at 662, the EPA is not required under that same provision t o issue regulations limiting NOD discharges from POTWs. Mr. Maier has not advan ced a duty-to-publish claim in the instant case, and we therefore do not consider this question further.-24-

As a matter of statutory delegation and practical n ecessity, the EPA exercises its expertise to determine if a given tec hnology ought to form the basis of the standard “secondary treatment” defined undersection 1314(d)(1). The phrase “secondary treatment” has an independent mea ning apart from its statutory context. “Conventional or secondary treatment of m unicipal waste includes biological processes, primarily decomposition, with or without chemical disinfectants, to remove organic wastes.” City of Sarasota, 813 F.2d at 1108 n.7. The phrase distinguishes one stage in a variegated treatment system:

There are three levels of wastewater treatment. Pr imary treatment refers to a physical sedimentation proces s for removing settleable solids. Secondary treatment re fers to a physical/biological process for removing solids andpollutants characterized by biological oxygen demand and pH. Tertiary treatment involves processes which remove other pol lutants such as non-biodegradable toxics. Natural Resources Defense Council, Inc. v. EPA, 790 F.2d at 293 n.2; see also California v. EPA , 689 F.2d 217, 218 (D.C. Cir. 1982) (distinguishin g secondary treatment, advance secondary treatment, and advance waste treatment). Although these descriptions suggest that NOD and nutrients f all within a general understanding of secondary treatment, they also dem onstrate “secondary treatment” has a broad connotation. The legislative history of the CWA also offers litt le guidance to the statutory definition of “secondary treatment” with respect to NOD. The EPA-25-

argues Congress intended that “secondary treatment” concern “organic” oxygen depletion, i.e., CBOD, but not NOD and nutrients. However, it is far from clear from the legislative history that this distinction was ever considered. As noted in the House Report, “[s]econdary treatment as conside red in the context of a publicly owned treatment works is generally concern ed with suspended solids and biologically degradable, oxygen demanding materials (BOD).” H. REP
. N O
. 92- 911, at 101 (1972). It appears more likely that wh en the CWA was enacted, treatment for NOD simply was not technologically fe asible. See, e.g. , Secondary Treatment Regulation, 49 Fed. Reg. 36,986, 36,988 ( 1984) (to be codified at 40 C.F.R. pt. 133) (“Secondary treatment requirements are based on controlling the oxygen demand due to the carbonaceous component of the organic material in the effluent because secondary treatment facilities can effectively remove carbonaceous organic material . . . but may not con sistently remove ammonia.”); Secondary Treatment Information, 48 Fed. Reg. 52,27 2, 52,273 (1983) (“‘[N]utrients . . . were not specified for inclusi on, because secondary treatment, under normal conditions, does not effectively or co nsistently remove them.’”) (citation omitted). Congress did not speak to the problem confronting us because for practical purposes it did not yet exist. Given the broad category of treatment processes and technology encompassed by “secondary treatment,” and statutorydelegation to the15 The dissent claims the EPA is foreclosed from exerc ising its discretion to

exclude NOD from its definition of secondary treatm ent because the agency has used secondary treatment regulations to control BOD , of which NOD is a component. As our discussion in part I.B makes cle ar, however, BOD parameters have historically been set by the agency as a rough proxy for CBOD. At the time that the BOD limitations were first promulgated, co ntrol of the NOD component was not technologically feasible. As the dissent c onstantly reminds us, secondary treatment is technology-based. The BOD parameter w as thus targeted at CBOD, for which reductions were technologically attainabl e, and not at NOD, for which reductions were not technologically attainable. By the time of the EPA’s 1984 rulemaking, a nitrification-inhibited test was deve loped which allowed for the isolation of the CBOD component. The EPA promulgat ed regulations approving the use of the CBOD test in lieu of the general BOD test. The EPA has never set discrete limitations on the NOD component. -26- Administrator to define secondary treatment, we do not find it impermissible for the EPA to refuse to extend its definition of stand ard secondary treatment to include controls on NOD. The EPA has consistently classified NOD reduction as a form of “advanced treatment” that will be require d by permit if necessary to protect water quality. See, e.g. , Secondary Treatment Information, 48 Fed. Reg. 52,272, 52,275 (1983) (proposed Nov. 16, 1983) (des cribing nitrification processes as “beyond secondary” treatment). We do not agree with Mr. Maier or the dissent that technological feasibility is the o nly criterion the EPA may use to determine which of the universe of secondary treatm ent technologies ought to be considered standard. Here, the agency’s choice is supported by its reasoned consideration of other factors that lie within its expertise in administering the

statute. 1516 On its face, the CWA gives the EPA less discretion in setting effluent

limitations on point sources other than POTWs. See 33 U.S.C. § 1311(b)(2)(A) (stating that for certain identified toxic pollutan ts “there shall be achieved . . . effluent limitations . . . which shall require the application of the best available technology economically achievable.”). -27- Section 1311(b)(1)(B), in conjunction with section 1314(d)(1), provides for the promulgation of generally-applicable effluent l imitations for POTWs. Section 1311(b)(1)(B) gives the EPA authority to determine the stringency and scope of generally-applicable effluent limitations that are based on secondary treatment. Thus, even if reductions of NOD and nutrients poten tially fall within the definition of “secondary treatment,” the EPA must d etermine if it should promulgate generally-applicable effluent limitation s for these specific pollutants. The statute requires that generally-applicable eff luent limitations for POTWs be “based uponsecondary treatment.” 33 U.S.C. § 1311(b)(1)(B) (e mphasis added). Contrary to Mr. Maier’s assertion, the statute does not on its face require that the generally-applicable effluent limitations address a ll pollutants that might be reduced by secondary treatment. 16 When we apply the deference due an adminstrative agency which Chevronmandates, “[t]he permissive nature of the statute implies broad agency discretion in selectin g the appropriate manner of regulation.” Professional Drivers Council v. Burea u of Motor Carrier Safety , 706 F.2d 1216, 1221 (D.C. Cir. 1983). EPA’s position that the statute allows the agency to impose limits for NOD on a case-by-case b asis through the permitting17 The dissent suggests that our analysis of section 1 311 substitutes our own

construction of the statute for that advanced by th e agency. In so doing, the dissent fails to distinguish between the source of agency discretion, which we must determine in the first instance under Chevron , and the basis for the agency’s exercise of its discretion, for which the dissent correctly obs erves we may not supply our own rationale. Moreover, we may not avo id construing the statute to the extent necessary to determine that the agency’s regulations are not “manifestly contrary to the statute.” Chevron , 467 U.S. at 844. -28- process is a reasonable and permissible reading of the statute, to which we must defer. 17
The EPA’s exercise of its discretion under sections 1311 and 1314 is not in these circumstances arbitrary, capricious, or manif estly contrary to the statute. The EPA has made the uncontroverted claim that the effect of NOD is highly variable and site-specific, and thus not appropriat e to a general regulation applicable to every POTW. Here, the EPA and the St ates approved to administer the NPDES permit program routinely impose NOD and n utrient limitations on POTWs on a case-by-case basis by permit. We are no t faced with a situation in which the EPA has chosen to ignore a pollutant or c ategory of pollutants for which effluent reductions are attainable by seconda ry treatment. The EPA has not substituted control by permit for control by genera lly-applicable effluent limitation without a reasoned explanation for its c hoice of method. Contrary to the dissent’s suggestion, the EPA has not sought, n or do we approve, “general discretion to define secondary treatment to cover o nly those pollutants that are--in-29-

the view of the Administrator--more appropriately r egulated via generallyapplicable regulations rather than case-by-case qua lity-based limits.” Dissent at 9. The EPA’s discretion is not unbridled. This brings us to Mr. Maier’s second argument, whic h is that the EPA’s refusal to include parameters for NOD and ultimate BOD in its secondary treatment regulations in this instance was nonethel ess arbitrary and capricious because the refusal was not supported by the eviden ce and was based on a consideration of impermissible factors. The Suprem e Court has stated an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended i t to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs c ounter to the evidence before the agency, or is so implausible th at it could not be ascribed to a difference in view or the product of agency expertise. Motor Vehicle Mfrs. Ass’n v. State Farm Mutual Auto . Ins. Co. , 463 U.S. 29, 43 (1983). The Court’s statement is equally applicabl e to an agency’s basis for declining to make a rule. The EPA does not dispute that one factual predicate of the existing regulations has changed—the feasibility and cost-ef fectiveness of technology to control NOD. See WWHT , 656 F.2d at 819 (“[A]n agency may be forced by a reviewing court to institute rulemaking proceedings if a significant factual predicate of a prior decision on the subject . . . has been removed.”). Mr. Maier argues that technological feasibility is the only c riterion the EPA may use to18 In his Reply Brief, Mr. Maier appends material pert aining to the

effectiveness of the permitting process in protecti ng water quality from NOD. We decline to consider this material as it was not presented in the petition to the EPA for consideration by the agency. -30- determine which secondary treatment controls ought to be generally applicable, and which may be imposed on a case-by-case basis. We disagree. The agency’s decision to control NOD and nutrients by permit is supported by two other factual predicates that lie within its expertise in adminis tering the statute: first, the impact of NOD and nutrients on water quality is hig hly variable with the characteristics of the receiving body of water; sec ond, control of NOD by permit adequately protects water quality where necessary. Mr. Maier does not dispute these factual premises. Instead, he argues that th e first is a legally impermissible consideration, and he explicitly eschews a challeng e to the second. 18 Mr. Maier observes Congress intended the effluent l imitations in the CWA to be technology-based, not based on assessments of water quality. In general, we agree. See EPA v. California ex rel. State Water Resources Co ntrol Board , 426 U.S. 200, 204-05 (1976). However, effluent limitat ions for POTWs must be “based upon” secondary treatment technology, not co -extensive with it. We do not agree with Mr. Maier that it is impermissible f or the EPA to consider effects on water quality in determining whether reductions attainable by new secondary treatment technology ought to be uniformly imposed on all POTWs. The purpose19 The dissent asserts that the “more stringent” permi ts described in section

1311(b)(1)(C) may only come into play where a gener ally-applicable regulation is not technologically feasible, or as a supplement wh en the generally-applicable regulation is inadequate to protect water quality. -31- of the CWA is to “restore and maintain the chemical , physical, and biological integrity of the Nation’s waters . . . .” 33 U.S.C . § 1251(a). The EPA relies on statutory language authorizing the EPA to use the p ermitting process to impose “more stringent limitation[s]” on POTWs where neces sary to protect water quality. 33 U.S.C. § 1311(b)(1)(C). We need not d etermine if section 1311(b)(1)(C) directly authorizes the use of permitting as an alternative to, as opposed to a supplement for, generally-applicable e ffluent limitations. 19 The fact that Congress has, in this closely related statutory section, provided for qualitybased permitting as a gap-filling measure gives str ong support to the EPA’s exercise of delegated authority to fill the gap whe re it has concluded that NOD should not be part of standard secondary treatment. The fact that secondary treatment controls are technology-based does not pr eclude the EPA from deciding that certain technologically-attainable standards a re necessary and appropriate only for some POTWs. We should not order the agenc y to develop generallyapplicable parameters based on the use of new techn ology, even if cost-effective, in the face of the agency’s reasoned judgment that the use of such technology is irrelevant to the attainment of water quality stand ards in many circumstances.-32-

Contrary to the suggestion of the dissent, we do no t approve the EPA’s regulations based on the agency’s naked “policy pre ference for quality-based controls rather than generally applicable limitatio ns.” Dissent at 7. The EPA has articulated its uncontroverted view that NOD is hig hly variable with the conditions of the receiving body of water. Consequ ently, NOD is particularly unsuited for a generally applicable regulation, and is appropriately dealt with--and is being dealt with--by permit. We agree with the dissent that the Clean Water Act amendments created a statutory regime in which technology-based standards are the primary mechanism of controlling discharge of pollutants. It is a far stretch from this presumption to the conclusion that the EPA may not exercise its authority in filling the gaps to conclude that cert ain pollutants, due to their peculiar characteristics, need not be controlled by across-the-board standards. Contrary to the dissent’s inference, we do not hold that the EPA may choose a permit-based approach over a technology-based stand ard merely based on the agency’s “policy preference.” The dissent gives lip service to the notion of defe rence to the agency, but the deference it would give is cramped indeed. The dissent asserts that to satisfy Chevron , “the implementing agency must point to some langu age in the statute to justify its policy conclusion--here, that the POTW regulatory regime can legitimately depart from the core public policy of the Clean Water Act.” Dissent-33-

at 8-9. This turns the Chevrontest on its head: the dissent, rather than deferri ng to the agency’s gap-filling unless “manifestly cont rary to the statute,” imposes on the agency the burden of proving that its gap-filli ng is manifestly authorized by the statute--in which case it would be unnecessary to invoke the Chevron framework in the first instance. We are faced with a paradigmatic situation calling for deference to the agency: where the stat ute allows the agency to exercise discretion, we should defer to the agency’ s use of its expertise in striking a careful balance between the broad statutory purpo ses and the unique problems posed by specific pollutants and technologies. The EPA has offered a reasoned basis for its belief that this balance is to apply a technology-based standard to some, rather than all, POTWs. Mr. Maier argues that, even if the EPA is right abo ut the costs of retrofitting existing POTWs, new facilities can be designed to treat NOD at no greater expense and the EPA should so require. Eve n if this is true, we are not persuaded the EPA’s failure to so act is arbitrary or capricious. The EPA maintains that NOD is adequately addressed on a pla nt-by-plant basis. Mr. Maier has failed to demonstrate that stricter standards i n individual permits are not effective in promoting the building of these newer, more effective designs. Moreover, this argument ignores the real costs of a dministering environmental laws. Promulgating revised regulations necessitate s a substantial commitment of-34-

limited agency resources. We have “little ability to determine the resources available to the agency or to determine whether the other problems to which the agency has chosen to devote its scarce resources ar e more or less important than the problem raised in the petition.” 1 D AVIS & P IERCE , A DMINISTRATIVE L AW T REATISE § 6.9, at 280. On the record in this case, we cannot hold that the EPA’s interpretation of the CWA is arbitrary or capricious, or that its rej ection of rulemaking in this instance is arbitrary or capricious. Since the EPAfirst promulgated regulations under Section 1311, it has never required that all oxygen-depleting pollutants be removed by means of generally-applicable secondary treatment controls. These regulations do not stand alone; rather, they set a national floor for the performance of secondary treatment systems. Primary and tertiary treatments complement their function, and individual permits f or treatment facilities can have stricter standards. EPA makes a reasoned argu ment that where NOD is a problem, it may be addressed in the terms of a POTW ’s permit, and points out that 53% of major secondary treatment facilities ac ross the country now have such requirements. Rec. at 123. Mr. Maier would have t o provide impressive evidence that the EPA has acted irrationally. He has not do ne so. Without a more convincing showing that the nation’s municipal wate r treatment system is broken, we will not order the EPA to fix it.-35-

AFFIRMED.LUCERO, Circuit Judge, Concurring in part and disse nting in part

I join parts I, II, and IIIA of the majority’s opin ion, but must respectfully dissent from part IIIB. The majority concludes that the EPA’s interpretation of the secondary treatment provisions is “permissible” and therefore valid under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837 (1984). I cannot agree for two reasons. First, on e “permissible” interpretation identified by the majority is not in fact advanced by the EPA. We cannot defer under Chevronto an agency construction when the agency has not construed the language at issue. Second, on this record, the EPA ’s construction of the term “secondary treatment” is not permissible. While th e Clean Water Act (“CWA”) gives the Administrator discretion to define second ary treatment pursuant to the statute, that discretion cannot be exercised in a m anner inconsistent both with the structure and legislative history of the statute an d with the Administrator’s own prior interpretation of the term. In allowing the substitution of quality-based controls for generally-applicable, technology-based effluent limitations, the majority allows the EPA to return clean water regul ation to the pre-1972 era. The EPA does not itself argue that the language of 33 U.S.C. § 1311(b)(1)(B)—that “there shall be achieved . . . e ffluent limitations based upon secondary treatment”—gives it discretion to set eff luent limitations lower than those deemed attainable through the application of secondary treatment. The majority’s resolution, to the extent it finds discr etion for the EPA’s decision from1 The majority argues that I fail to distinguish betw een “the source of

agency discretion, which we must determine in the f irst instance under Chevron , and the basis forthe agency’s exercise of its discretion, for which . . . we may not supply our own rationale.” Maj. Op. at 28 n.17. T he majority’s distinction is untenably semantic because an agency’s exercise of discretion under Chevron must be based on its claimed statutory source of di scretion. In reviewing the (continued...) -2- the term “based upon,” see Maj. Op. at 27-28, is premised on its own construc tion of the statute, not the EPA’s. That runs counter t o the logic of Chevrondeference and consequently to a core principle of judicial re view of agency action. “If the basis stated by the agency for its decision is insu fficient, we may not supply another that the agency itself has not chosen to re ly on.” American Meat Inst. v.
EPA , 526 F.2d 442, 453 (7th Cir. 1975) (citing SEC v. Chenery Corp. , 332 U.S. 194, 196 (1947) (“[T]he court is powerless to affirm the administrative action by substituting what it considers to be a more adequat e or proper basis. To do so would propel the court into the domain which Congre ss has set aside exclusively for the administrative agency.”)). If Congress has implicitly or explicitly left gaps in a statutory scheme, Chevronrequires us to defer to reasonable efforts on the part of the agency to fill those gaps through p olicy and rule-making, see 467 U.S. at 843-44, and is explicitly concerned with th e agency’s construction of congressional language to fill those gaps, id. Such gap-filling can only be upheld if the agency’s own rationale for its actions—inclu ding its construction of the statute—is proper. 11 (...continued)

former, a court is bound to review the latter. The majority would have the reviewing court independently root through the stat ute on its own cognizance looking for gaps that the agency’s policymaking mig ht permissibly back-fill. What the majority has done is to identify an ambigu ous portion of the statute, i.e. the “based upon” language of § 1311(b)(1)(B), and d efended the agency’s failure to promulgate generally-applicable NOD effluent lim itations on the basis of the court’s own construction of that ambiguous term. Q uite aside from the fact that the EPA has implicitly disavowed this particular co nstruction of the statute, Chevroncontains absolutely no authorization for approving administrative constructions in this manner. The most that the ma jority can conceivably make of the “based upon” language of § 1311(b)(1)(B) is that the administrative construction of “secondary treatment” does not viol ate that particular statutory provision. This view is probably unsustainable in light of the EPA’s previous interpretation of § 1311(b)(1)(B). But even assumi ng its validity, the majority’s view fails to show that the administrative construc tion of “secondary treatment” does not fall afoul of some other provision of the CWA. -3- Reviewing the Agency’s denial of Maier’s petition, its briefs, as well as the material accompanying its earlier promulgation and amendment of secondary treatment regulations, I can find no suggestion fro m the Administrator that were she to find reductions of a particular pollutant attainable by means of secondary treatment, she would not need to promulgate a gener ally-applicable effluent limitation for that pollutant. Indeed, the Agency may hold a contrary view of its § 1311(b)(1)(B) discretion. In responding to Maier’s petition, the Administrator states that were technologies to control NOD consid ered to be secondary treatment, “[a]ny such revised secondary treatment requirements would be universally applicable to all POTWs pursuant to sec tion 301(b)(1)(B) [33 U.S.C. § 1311(b)(1)(B)].” A.R. at 123-24; see also EPA Br. at 26 (“Were NOD-4-

limitations to be made part of ‘secondary treatment ,’ they would apply to all POTWs regardless of local conditions.”). Moreover, the relevant regulatory history strongly suggests that the Agency would not interpret the “based upon” language in § 1311(b)(1)(B) to give it discretion to depart from reductions attainable by the technology described in 33 U.S.C. § 1314(d)(1). Effluent limitations on POTW s are set pursuant to 40 C.F.R. § 133.102. This regulation, which the Agenc y refers to as the Secondary Treatment Information regulation, consistently cite s both § 1311(b)(1)(B) and § 1314(d)(1) as its statutory authority, see, e.g. , 41 Fed. Reg. 37222 (1976), and has never suggested that reductions deemed attainable v ia secondary treatment need not be translated directly into applicable effluentlimitations. Rather, the Agency has implicitly viewed the Secondary Treatment Infor mation regulation as simultaneously satisfying both its information publ ication obligations under § 1314(d)(1) and its limitation promulgation obligati ons under § 1311(b)(1)(B). See, e.g. , 42 Fed. Reg. 54664 (1977) (“The Secondary Treatme nt Information regulation contains effluent limitations in terms o f biological oxygen demand, suspended solids and pH which must be achieved by m unicipal wastewater treatment plants . . . in accordance with section 3 01(b)(1)(B) of the . . . FWPCA. The Secondary Treatment Information regulation was promulgated pursuant to section 304(d)(1) of the FWPCA.”).-5-

In fact, the Agency appears to regard the Secondary Treatment Information regulation as simultaneously defining secondary treatment andestablishing the effluent limitations applicable to POTWs. See 41 Fed. Reg. 37222 (1976) (“Secondary treatment (as defined in 40 C.F.R. 133) is the minimum level of treatment required for all publicly-owned treatmentworks.”); 49 Fed. Reg. 36987 (1984) (“The secondary treatment regulation defines ‘secondary treatment’ as attaining an average effluent quality for both bioc hemical oxygen demand, fiveday (BOD 5) and SS of 30 mg/l in a period of 30 con secutive days, an average effluent quality of 45 mg/l for the same pollutants in a period of 7 consecutive days, and 85 percent removal of the same pollutants in a period of 30 consecutive days.”). Agency practice has thus never recognized a disjunction between its obligation to publish attainable reductions under § 1314(d)(1) and to promulgate effluent limitations under § 1311(b)(1)(B). Yet th e majority’s “based upon” analysis would create this disjunction and effectiv ely attribute it to the Agency’s discretion. The Agency claims “considerable discretion . . . to define ‘secondary treatment.’” EPA Br. at 27. Exercising this defin itional discretion, the Agency asserts that controls on NOD and nutrients “simply should not be required as part of ‘secondary treatment.’” Id. at 25. Were the Administrator responding to Maier’s petition in a regulatory vacuum, we might b e required to defer to this2 “Secondary treatment as considered in the context o f a publicly-owned

treatment works is generally concerned with suspend ed solids and biologically degradable, oxygen demanding materials (BOD).” H. Rep. No. 92-911, 92d Cong., 2d Sess., at 101 (1971), quoted inProposed Rule, 48 Fed. Reg. 52272, 52273 (1983). -6- agency definition of secondary treatment. But thatis not the case. The secondary treatment regulations have always set controls on b iological oxygen demand (BOD), see 38 Fed. Reg. 10642 (1973) (defining minimum level of BOD reduction attainable through application of seconda ry treatment), and such “gapfilling” appears entirely consistent with the appli cable legislative history. 2 Moreover, as noted above, BOD controls, in conjunct ion with those imposed on certain other pollutants such as suspended solids, have been administratively regarded as defining secondary treatment. The Agency recognizes that NOD is one of two compon ents of BOD, the other being carbonaceous BOD (or “CBOD”). See, e.g

. , 48 Fed. Reg. 52272, 52274 (1983). Maier’s petition therefore requests the Agency to apply specific controls to a pollutant whose restriction falls bro adly within the administrative and legislative understanding of secondary treatmen t. Of course, given the EPA’s statutorily-conferred discretion to achieve “efflue nt limitations based upon secondary treatment,” § 1311(b)(1)(B), the EPA may not be obliged to impose secondary treatment-based controls on NOD. But hav ing included the control of oxygen-depleting compounds within the general defin ition of secondary-7-

treatment, it is incumbent upon the EPA to explain its refusal to promulgate NOD and nutrient limitations. In the past, the Administrator has principally expl ained the refusal to treat NOD controls as part of secondary treatment as proc eeding from the impracticality of such controls. See, e.g. , 49 Fed. Reg. 36986, 36988 (1984); 48 Fed. Reg. 52272, 52273 (1983) (citing supporting do cumentation for 1973 regulations). Such a decision, if adequately suppo rted by the record, is well within the Administrator’s rulemaking discretion. In denying Maier’s petition, the EPA now points to two factors. First, the Agen cy reiterates that secondary treatment is concerned with the removal of carbonac eous organic material. This argument begs the question. If Maier’s petition qu estions the EPA’s earlier conclusion as to non-attainability, the Agency shou ld explain its continued reliance on its previous explanation. The EPA has not done so, instead insisting that any new information on attainability submitted by Maier “does not establish (or even suggest) why control of nitrogen or phosph orus should be considered secondary treatment.” A.R. at 125. That error alone would not require us to remand to the Agency were the second factor relied on by the Administrator to deny Maier’s petition more persuasive. It is not. The Agency’s second defens e of its secondary treatment regulations is to point to its policy preference fo r quality-based controls rather-8-

than generally applicable limitations, at least forpollutants that do not have a uniform impact on receiving bodies of water. See A.R. at 113-14, 123; see also EPA Br. at 19-20. The EPA may yet have good reason s for refusing to regulate NOD via generally-applicable effluent limitations o n POTWs, but a policy preference for quality-based measures over generall y-applicable technology-based measures is not one of them. Such a preference imp roperly construes the CWA. Before 1972, the stated purpose of the Federal Wate r Pollution Control Act (“FWPCA”) was “to enhance the quality and value of our water resources and to establish a national policy for the prevention, con trol, and abatement of water pollution.” 33 U.S.C. § 1151(a) (1970) (supersededby Pub. L. 92-500, § 2, 88 Stat. 816 (1972)). To this end, the pre-1972 legis lation employed ambient water quality standards as the primary mechanism for wate r pollution control. See EPA v. California State Water Resources Control Bd. , 426 U.S. 200, 202 (1976). The 1972 Amendments to the FWPCA, popularly known as th e Clean Water Act, deliberately ended this approach. Prompted by the Senate Committee on Public Works’ review of the FWPCA program, and its conclus ion that “the national effort to abate and control water pollution has bee n inadequate in every vital respect,” S. Rep. 92-414, at 7, reprinted in 1972 U.S.C.C.A.N. 3668, 3674, Congress declared as the new national goal of the p rogram that “the discharge of pollutants into the navigable waters be eliminated, ” 33 U.S.C. § 1251(a)(1).3 The Senate Report accompanying the CWA notes: “The application of

Phase I technology to industrial point sources is b ased upon the control technologies for those sources and to publicly owne d sewage treatment works is based upon secondary treatment. It is not based up on ambient water quality considerations .” S. Rep. 92-414, at 43, reprinted in 1972 U.S.C.C.A.N. 3668, 3710 (emphasis added).

4 Contrary to the majority’s assertion, placing this obligation on the Administrator does not “turn[] the Chevrontest on its head.” Maj. Op. at 33. Chevronauthorizes the Administrator to fill legislative g aps, but only when done in compliance with her statutory policymaking discr etion. Chevron , 467 U.S. at 843-44. Here, the EPA has without justification ch osen to fill a gap by means of a policy that contravenes the most fundamental tene t of the CWA. See Maislin (continued...) -9- Consistent with this end, the CWA substituted techn ology-based, generallyapplicable effluent limitations for water quality-b ased regulatory approaches. See State Water Resources Control Bd. , 426 U.S. at 204 (“Such direct restrictions on discharges facilitate enforcement by making it unne cessary to work backward from an overpolluted body of water to determine whi ch point sources are responsible and which must be abated.”). The legis lative history of the Act is replete with references to the need for this substi tution. 3 The EPA’s denial of Maier’s petition effects an ent irely opposite substitution. In order for an administrative const ruction that runs counter to basic policies underlying the relevant statutory scheme t o be reasonable under the second step of Chevron , the implementing agency must point to some langua ge in the statute to justify its policy conclusion—here, that the POTW regulatory regime can legitimately depart from the core public policy of the CWA. 4 The4 (...continued)

Indus., U.S. v. Primary Steel , 497 U.S. 111, 134-35 (1990) (agency “does not have the power to adopt a policy that directly conf licts with its governing statute”). Without some language suggesting that P OTWs are exempt from the force of this basic statutory imperative, the EPA’s regulatory inaction must be regarded as “manifestly contrary to the statute,” a nd accordingly invalid under Chevron . 467 U.S. at 844. -10- Administrator has not done so. Her passing relianc e on § 1311(b)(1)(C), which allows the Administrator to set “more stringent lim itation[s]” to meet water quality standards, is misplaced. At most, that pro vision allows the Administrator to set quality-based limits for pollutants that can not be attainably reduced by secondary treatment, or to set supplementaryquality-based limits for pollutants already regulated by a floor of generally-applicabl e limitations based on secondary treatment. It cannot reasonably be read as general discretion to redefine secondary treatment to cover only those po llutants that are—in the view of the Administrator—more appropriately regulated v ia generally-applicable regulations rather than case-by-case quality-based limits. That interpretation makes a mockery of the primacy accorded technology- based regulation by the plain language and legislative history of the CWA. In fact, Congress has itself confirmed that POTWs a re not exempted from this core policy. In 1977, Congress enacted 33 U.S .C. § 1311(h), which permits the Administrator, on a case-by-case basis, to rela x secondary treatment requirements for POTWs releasing pollutants into marine waters. See 33 U.S.C. §5 The majority states that it is not authorizing the EPA’s exercise of general

policy discretion to substitute quality-based restr ictions for generally-applicable, technology-based effluent limitations, but is inste ad restricting the EPA’s discretion to cases in which it advances a “reasone d explanation” for this substitution. See Maj. Op. at 32. I am not so sure. Nowhere does t he CWA suggest that its clear technology-first imperative is subject to cancellation by the agency’s “reasoned explanations.” Nor does the maj ority explain why in the absence of statutory authorization, the EPA is free to ignore that imperative on the basis of its own “reasoned explanations.” See Director, Office of Workers’ Comp. v. Newport News , 115 S. Ct. 1278, 1288 (1995) (“Every statute prop oses, not only to achieve certain ends, but also to achie ve them by particular means . . . . The withholding of agency authority is as signif icant as the granting of it, and we have no right to play favorites between the two. ”). Finally, the majority fails to explain why the qualitative variability of pollu tant discharges constitutes such a “reasoned explanation,” or what other types of ag ency explanation would or would not allow for a similar departure from the ba sic public policy of the CWA. Without some limiting principle, it is hard not to conclude that the majority is essentially deferring to the EPA’s policy preferenc e for quality-based standards. -11- 1311(h). If the EPA has the discretion relied on b y the Administrator in the present case, this provision was (and is) entirely unnecessary. The Administrator could simply declare that the biological treatment of pollutants by POTWs that release into marine waters is not “secondary treatm ent” because she has made the policy choice to address such discharges solely thr ough individual NPDES permit requirements. In passing § 1311(h), Congress effec tively stated that such discretion was not open to the Administrator. Cf. Bridger Coal Co. v. Director, Office of Workers’ Compensation Programs , 927 F.2d 1150, 1153 (10th Cir. 1991) (statute should be interpreted to give meanin g and effect to each provision). It is not our place to offer discretion to the Agen cy where Congress has not. 56 The majority states that I view technological feasi bility as the “only

criterion” that the EPA can use to define secondary treatment. Maj. Op. at 26. That is incorrect. Our review is appropriately con fined to the reasons given by the EPA for its denial of Maier’s petition. In my view, the only argument the EPA offers that is not “manifestly contrary to the statute,” is one based on unsubstantiated claims of technological feasibility . This should not be contorted to mean that the EPA’s only possible basis for defi ning secondary treatment is technological feasibility. -12- On a number of occasions, the Agency has itself con firmed that “effluent limitations based upon secondary treatment” cannot be fixed by reference to quality-based considerations. See, e.g. , 38 Fed. Reg. 22298 (1973) (POTW effluent limitation regulation “is to be based on t he capabilities of secondary treatment technology and not ambient water quality” ); 41 Fed. Reg. 30786, 30788 (1976) (same). In denying Maier’s petition, the Ad ministrator alludes to this constraint, see A.R. at 117 (“[T]he definition of secondary treatm ent is to be technology-based rather than water quality based”), then ignores it without explanation. The denial of Maier’s petition must be “based on a consideration of the relevant factors.” Citizens to Preserve Overton Pa rk, Inc. v. Volpe , 401 U.S. 402, 416 (1971). Here, the EPA’s denial is based on one factor that is illegitimate—its “reasoned” policy preference for quality-based overgenerally-applicable, technology-based restrictions—and another that is l egitimate but unsubstantiated—the nonattainability of NOD reducti ons. 6 I would remand the-13-

petition to the Agency for reconsideration in lightof the correct legal principles.
See American Horse Protection Ass’n v. Lyng , 812 F.2d 1, 7-8 (D.C. Cir. 1987).